Hereford & Hops Restaurant and Brew Pub

National Labor Relations Board - Board Decisions

Jun 25, 2004

342 N.L.R.B. 13 (N.L.R.B. 2004)

342 NLRB No. 13
Brown and Drake Bay City LLC d/b/a Hereford &
Hops Restaurant and Brew Pub and Linda M.
Lukowski. Case 7–CA–46016
June 25, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement.
Upon a charge and an amended charge filed by Linda M.
Lukowski on March 13, 2003, and May 23, 2003, respec-
tively, the General Counsel issued the original complaint
on May 28, 2003, against Brown and Drake Bay City
LLC d/b/a Hereford & Hops Restaurant and Brew Pub,
the Respondent, alleging that it has violated Section
8(a)(1) of the Act.
Thereafter, on August 26, 2003, the Respondent en-
tered into a settlement agreement, which was approved
by Administrative Law Judge Mark D. Rubin on Sep-
tember 5, 2003. The settlement required the Respondent
to: (1) make whole employee Linda M. Lukowski and
employee Lakeshia Washington by payment to each of
them of $5000 in six installments to be remitted to Re-
gion 7; and (2) post a notice to employees regarding the
complaint allegations. The agreement also contained the
following further provisions:

The Charged Party [Respondent] agrees that in case of
non-compliance with any of the terms of this Settle-
ment Agreement by the Charged Party, including but
not limited to, failure to make timely installment pay-
ments of moneys, and after 15 days notice from the
Regional Director of the National Labor Relations
Board of such non-compliance without remedy by the
Charged Party, the Regional Director shall reissue the
complaint previously filed in the instant cases. There-
after, the General Counsel may file a motion for sum-
mary judgment with the Board on the allegations of the
just issued complaint concerning the violations alleged
therein. The Charged Party understands and agrees that
the allegations of the aforementioned complaint may be
deemed to be true by the Board, that it will not contest
the validity of any such allegations, and the Board may
enter findings, conclusions of law, and an order on the
allegations of the aforementioned complaint. On re-
ceipt of said motion for summary judgment the Board
shall issue an Order requiring the Charged Party to
Show Cause why said Motion of the General Counsel
should not be granted. The only issue that may be
raised in response to the Board’s Order to Show Cause
is whether the Charged Party defaulted upon the terms
of this settlement agreement. The Board may then,
without necessity of trial or any other proceeding, find
all allegations of the complaint to be true and make
findings of fact and conclusions of law consistent with
those allegations adverse to the Charged Party, on all
issues raised by the pleadings. The Board may then is-
sue an Order providing full remedy for the violations
found as is customary to remedy such violations, in-
cluding but not limited to the provisions of this Settle-
ment Agreement. The parties further agree that the
Board Order and a U.S. Court of Appeals Judgment
may be entered herein ex parte.

By letter dated March 5, 2004, the Regional Director
of Region 7 advised the Respondent that the Region had
not received the February 20, 2004 installment payments
due to Lukowski and Washington, and that if those pay-
ments were not received by March 22, 2004, the Re-
gional Director would reissue the complaint and file a
motion for summary judgment, as provided for in the
settlement agreement.
The Respondent has not complied with the terms set
forth in the Regional Director’s March 5, 2004 letter.
Therefore, on April 1, 2004, the Regional Director reis-
sued the complaint. The Respondent has not filed an
answer to the reissued complaint.
On April 12, 2004, the General Counsel filed a Motion
for Summary Judgment with the Board. The General
Counsel submits that the Respondent defaulted on the
settlement agreement by failing to make the required
payments, and that the allegations of the reissued com-
plaint should, therefore, be deemed admitted as true. On
April 16, 2004, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
According to the uncontroverted allegations in the
General Counsel’s Motion for Summary Judgment, the
Respondent has failed to comply with the settlement
agreement approved by the administrative law judge on
September 5, 2003, by failing to remit the agreed-upon
backpay amounts due employees Lukowski and Wash-
ington. Consequently, pursuant to the noncompliance
provisions of the settlement agreement set forth above,
we find that all of the allegations of the complaint are
true.
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Bay City, Michi-
gan (the Respondent’s Bay City facility), has been en-
gaged in business as a restaurant serving food and bever-
age to the public.
During the 12-month period preceding reissuance of
the complaint, in conducting its business operations de-
scribed above, the Respondent derived gross revenues in
excess of $500,000, and purchased and received at its
Bay City facility liquor and goods valued in excess of
$10,000 directly from points outside the State of Michi-
gan. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their names and have
been supervisors of the Respondent within the meaning
of Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act:

John Filary General Manager
David Southworth Assistant Manager
Mark Dexter Assistant Manager
until about March 2003

At all material times, the Respondent has promulgated
and maintained in an employee manual entitled “Stan-
dard of Conduct,” which it has issued to employees, the
following rules applicable to all employees, violation of
which may result in separation from employment:

7. No solicitation or posting of solicitations of our
employees or guests is permitted.

8. The privacy of our guests and your fellow em-
ployees while of [sic] the premises must be re-
spected at all times.

At all material times the Respondent has promulgated
and maintained in an employee manual entitled “Tipped
Employees’ Responsibilities”, which it has issued to em-
ployees, the following rules:

6. NEVER discuss tips received with anyone on
premises. Your gratuities as well as your pay-
check are private and personal issues. This in-
cludes asking your co-servers about their tips; it is
considered inappropriate. When a server checks
out at the end of his/her shift with the manager or
at the computer allow this co-server his/her pri-
vacy.

7. If you do not receive a tip from a customer, or feel
that the tip you did receive was inappropriate, you
must never discuss it with anyone on premise.

At all material times, the Respondent has promulgated
and maintained overly broad no-solicitation and confi-
dentiality rules.
At various times since about late December 2002, the
Respondent’s employees, including Linda M. Lukowski
and Lakeshia Washington, concertedly complained to the
Respondent regarding wages, hours, and working condi-
tions of employees by attempting to have the Respondent
change its tipping policy.
About January 13, 2003, the Respondent, by its agent
John Filary, discharged Lukowski and Washington be-
cause they engaged in protected concerted activities and
because they violated the Respondent’s work rules set
forth above.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed them
in Section 7 of the Act, and has thereby engaged in unfair
labor practices that affect commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent has
violated Section 8(a)(1) by promulgating and maintain-
ing overbroad no-solicitation and confidentiality rules,
and rules prohibiting the discussion of employees’ tips,
we shall order the Respondent to rescind those rules,
remove them from its employee manual, and advise em-
ployees in writing that the rules are no longer being
maintained.
In addition, having found that the Respondent has vio-
lated the Act by discharging employees Linda M. Lu-
kowski and Lakeshia Washington, we shall order the
Respondent to make Lukowski and Washington whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them. In this regard,
the Respondent agreed in the settlement agreement that it
would pay Lukowski and Washington a total of $5000 to
cover the period from their discharge until the effective
HEREFORD & HOPS RESTAURANT & BREW PUB 3
date of the settlement agreement. The General Counsel’s
motion states that there is an outstanding balance in the
amount of $3650 owed to each of the discriminatees.
Accordingly, the Respondent shall remit $7300 to the
Region for payment to the discriminatees.
We find, however, that the backpay due Lukowski and
Washington should not be limited to this amount. As set
forth above, the settlement agreement provided that, in
the event of noncompliance, the Board could issue an
Order “providing full remedy for the violations found as
is customary to remedy such violations, including but not
limited to the provisions of this Settlement Agreement.”
Thus, under this language, it is appropriate to provide the
“customary” remedies of reinstatement, full backpay,
expungement of the Respondent’s personnel records, and
notice posting.1
The additional backpay due Lukowsi and Washington
shall be computed as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). However, because
we shall order the Respondent to pay the liquidated rem-
edy specified in the settlement agreement, the applicable
backpay periods will commence on September 5, 2003,
the day the administrative law judge approved the set-
tlement agreement. We find it necessary to impose this
limitation to prevent an unintended double recovery for
the periods running from the date that Lukowsi and
Washington were discharged to the effective date of the
settlement agreement.
We shall also order the Respondent to offer Lukowski
and Washington full reinstatement to their former jobs,
or if those jobs no longer exists, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
In addition, the Respondent shall be required to ex-
punge from its files any and all references to the unlaw-
ful discharges of Lukowsi and Washington, and to notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Brown and Drake Bay City LLC d/b/a
Hereford & Hops Restaurant and Brew Pub, Bay City,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

1 The General Counsel has requested, in his Motion for Summary
Judgment, that the Board order “the payment of $3,650.00 to the
Charging Party and for payment of $3,650.00 to discriminatee Lakeshia
Washington in liquidated damages, and such other relief deemed ap-
propriate and necessary by the Board.”
(a) Promulgating and maintaining an overbroad no-
solicitation rule.
(b) Promulgating and maintaining an overbroad confi-
dentiality rule prohibiting employees from discussing
their wages and working conditions.
(c) Promulgating and maintaining a rule prohibiting
employees from discussing their tips anywhere on the
premises.
(d) Discharging or otherwise discriminating against
employees for violating unlawful rules or because they
engage in concerted activity protected by the Act.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rules indicated in 1(a) through (c)
above, remove them from its employee handbooks, and
advise employees in writing that the rules are no longer
being maintained.
(b) Within 14 days from the date of this Order, offer
Linda M. Lukowski and Lakeshia Washington full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(c) Pay to Region 7 $7300 to be disbursed to Linda M.
Lukowski and Lakeshia Washington in accordance with
the September 5, 2003 settlement agreement, and make
them whole for any loss of earnings and other benefits
suffered since September 5, 2003, as a result of their
unlawful discharges, in the manner set forth in the rem-
edy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful dis-
charges of Lukowski and Washington, and within 3 days
thereafter, notify them in writing that this has been done,
and that the unlawful discharges will not be used against
them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Bay City, Michigan, copies of the attached
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 13, 2003.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.

WE WILL NOT promulgate or maintain an overbroad
confidentiality rule prohibiting employees from discuss-
ing wages and working conditions.
WE WILL NOT promulgate or maintain a rule prohibiting
employees from discussing their tips anywhere on the
premises.
WE WILL NOT discharge or otherwise discriminate
against employees for violating unlawful rules or be-
cause they engage in concerted activity protected by the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL NOT promulgate or maintain an overbroad no-
solicitation rule.
WE WILL rescind the rules noted above, remove them
from our employee handbooks, and advise employees in
writing that the rules are no longer being maintained.
WE WILL , within 14 days from the date of the Board’s
Order, offer Linda M. Lukowski and Lakeshia Washing-
ton full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL pay to Region 7 $7300 to be disbursed to Lu-
kowski and Washington in accordance with the Septem-
ber 5, 2003 settlement agreement, and make them whole
for any loss of earnings and other benefits suffered since
September 5, 2003, as a result of their unlawful dis-
charges, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful discharges of Lukowski and Washington, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done, and that the unlawful discharges
will not be used against them in any way.
BROWN AND DRAKE BAY CITY LLC D/B/A
HEREFORD & HOPS RESTAURANT AND BREW
PUB